Towle v. NH State Prison, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Robert Towle
v. 	Civil No. 15-cv-117-SM
Warden, New Hampshire State Prison
REPORT AND RECOMMENDATION
Before the court are petitioner Robert Towle’s three
motions to amend (Doc. Nos. 65, 67, 91) and addenda thereto
(Doc. Nos. 69, 70, 74). 	Respondent has filed objections (Doc.
Nos. 68, 92) to the motions to amend.
In the Order issued this date, the court has granted each
of those motions to amend (Doc. Nos. 65, 67, 91), in part, to
the extent it has deemed the amended petition to include the new
federal claims numbered below as Claims 15-24 and has directed
respondent to file an answer or other response to those claims.
This Report and Recommendation recommends, for reasons stated
below, that the motions to amend at issue (Doc. Nos. 65, 67, 91)
be otherwise denied.
Motion to Amend Standard
Federal Rule of Civil Procedure 15(a)(2) provides that a
party who is no longer able to amend a pleading as of right may
amend only with the court’s leave, and that “[t]he court should
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freely give leave when justice so requires.” 	Fed. R. Civ. P.
15(a)(2); Rule 12, Rules Governing 28 U.S.C. § 2254 Petitions
(“§ 2254 Rules”) (Federal Rules of Civil Procedure apply in
habeas cases to the extent they are not inconsistent with any
statutory provision or the § 2254 Rules). 	“[A] district court
may deny leave to amend when the request is characterized by
undue delay, bad faith, futility, or the absence of due
diligence on the movant’s part.” 	Nikitine v. Wilmington Tr.
Co., 715 F.3d 388, 390 (1st Cir. 2013) (internal quotation marks
and citations omitted).
Background
On March 23, 2016, the court directed service on the
respondent, and directed respondent to answer, Towle’s initial
habeas petition (Doc. No. 1) and addendum to that petition (Doc.
No. 9), which asserted fourteen claims. 	See Aug. 28, 2015 Order
(Doc. No. 5), at 2-4 (listing Claims 1-14). 	Towle now seeks to
add additional claims to this action alleging that his
conviction and incarceration were obtained in violation of his
state and federal constitutional rights.
Discussion
I. 	Newly Asserted Claims That May Proceed
Each of the new federal constitutional claims asserted in
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Towle’s three motions to amend has been fully exhausted in the
state courts. 	As justice requires an Order granting Towle leave
to raise all of the claims he has exhausted in this case, in the
Order issued this date, Towle’s habeas petition is deemed
amended to add the following new claims to this action1:
15. 	Towle’s Fifth and Fourteenth Amendment right not to be
subjected to double jeopardy was violated when:
(a) Towle was convicted of two separate counts of
pattern aggravated felonious sexual assault, each
alleging that Towle committed more than one act of
aggravated felonious sexual assault on the same
victim, J.T., during the same time period, where all
of the sexual assaults charged in the two indictments
were part of the same pattern, and was thus twice
convicted of the same offense; and
(b) Towle was sentenced to consecutive sentences on
each of the two indictments, and was thus twice
punished for the same offense.
16. 	Towle’s Sixth and Fourteenth Amendment rights were
violated when the trial court: (a) denied Towle the right
to be present for individual juror voir dire conducted at
the bench during jury selection in his state criminal case,
and (b) on the second day of trial, denied Towle a
transcript of that individual juror voir dire.2
17. 	Towle’s Sixth and Fourteenth Amendment rights were
violated when the trial court denied Towle an impartial
jury in his state criminal case.
1The claims already pending in this action are numbered
Claims 1-14. 	See Aug. 28, 2015 Order (Doc. No. 5), at 2-4. 	The
new federal constitutional claims asserted in the motions to
amend are renumbered above as Claims 15-24.
2In Claims 16-20, 23, and 24, Towle has asserted claims
under the Fifth Amendment. 	Those claims assert violations of
the Fourteenth Amendment, and the court construes Claims 16-20,
23, and 24 to assert only Sixth and Fourteenth Amendment claims.
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18. 	Towle’s Sixth and Fourteenth Amendment rights were
violated when he was denied the effective assistance of
trial counsel, when counsel: (a) failed to question
prospective jurors concerning their biases, (b) did not
properly utilize peremptory and for-cause challenges to
remove biased jurors from Towle’s jury, and (c) did not
properly raise, and preserve for appeal, issues concerning
jury selection.
19. 	Towle’s Sixth and Fourteenth Amendment rights were
violated when he was denied the effective assistance of
trial counsel, when counsel failed to properly raise and
preserve Towle’s claim that his right not to be subject to
double jeopardy was violated by his convictions and
consecutive sentences on two pattern aggravated felonious
sexual assault charges, each alleging that Towle committed
more than one act of aggravated felonious sexual assault on
the same victim, J.T., during the same time period.
20. 	Towle’s Sixth and Fourteenth Amendment rights were
violated when, as to each of the two pattern aggravated
felonious sexual assault charges against him, the trial
court omitted an element of the offense from its jury
instructions.
21. 	Towle’s Fifth, Sixth and Fourteenth Amendment rights
were violated when the trial court’s jury instructions
permitted the jury to find that Towle was guilty, without
the jurors having unanimously agreed on the acts that
satisfied a variant element of two pattern aggravated
felonious sexual assault charges, where the pertinent
variant was what differentiated the two charges.
22. 	Towle’s Fifth and Fourteenth Amendment rights were
violated when the trial court’s jury instructions allowed
him to be convicted of three charges concerning fellatio,
in violation of his right not to be twice placed in
jeopardy for a single offense.3
23. 	Towle’s Sixth and Fourteenth Amendment rights were
violated when he was denied the effective assistance of
3In Claim 22, Towle asserts a double jeopardy claim. 	Such
claims arise under the Fifth and Fourteenth Amendments, but not
the Sixth Amendment. 	Accordingly, the court construes Claim 22
to assert only Fifth and Fourteenth Amendment claims.
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trial counsel, when counsel failed to properly raise and
preserve any claim related to Towle’s challenges to the
trial court’s jury instructions in his criminal case, the
substance of which are set forth above in Claims 20-22.
24. 	Towle’s Sixth and Fourteenth Amendment rights were
violated when he was denied the effective assistance of
appellate counsel, when counsel failed to properly raise,
on appeal, any claim related to Towle’s challenges to the
trial court’s jury instructions in his criminal case, the
substance of which are set forth above in Claims 20-22.
In the Order issued this date, the court has granted, in part,
petitioner’s motions to amend (Doc. Nos. 65, 67, 91), to the
extent those motions request that the petition be amended to
include Claims 15-24, and the court has directed respondents to
file an answer or other response to Claims 15-24.
II. 	State Law Claims
Towle’s motions to amend the petition assert that the facts
underlying Claims 15-24 violate his rights under state law. 	The
federal habeas statute, 28 U.S.C. § 2254, “‘unambiguously
provides that a federal court may issue a writ of habeas corpus
to a state prisoner only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the United
States.’” 	Swarthout v. Cooke, 562 U.S. 216, 219 (2011)
(citations omitted). 	“‘[F]ederal habeas corpus relief does not
lie for errors of state law.’” 	Id. 	Accordingly, the district
judge should deny Towle’s motions to amend (Doc. Nos. 65, 67,
91) to the extent the claims therein assert violations of state
law.
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III. Motion to Reconsider
In Towle’s motion to amend docketed as Document No. 67 in
this case, he asserts a claim that the “habeas court” erred in
finding that the respondent’s answer and motion to dismiss was
timely filed. 	Towle does not specify whether he is referring to
a decision of the court in this matter, or in the state habeas
case, Towle v. Kench, No. 217-2015-cv-580 (N.H. Super. Ct.,
Merrimack Cty.). 	Regardless, neither a federal nor a state
habeas court’s ruling concerning the timeliness of an answer or
motion to dismiss provides an independent basis for federal
habeas relief. 	The district judge, therefore, should deny
Document No. 67 to the extent it seeks to add a claim arising
out of a ruling, of either this court or the state habeas court,
on the timeliness of the answer or a motion to dismiss.
Conclusion
For the foregoing reasons, the district judge should deny
in part Towle’s motions to amend (Doc. Nos. 65, 67, 91), as
follows:
1. 	All three motions to amend should be denied to
the extent they assert violations of state law; and
2. 	The motion to amend docketed as Document No. 67
should be denied to the extent it seeks to assert a claim
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concerning a ruling, by this court and/or the state habeas
court, that any filing in the pertinent habeas proceeding
was untimely filed.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. 	See Fed.
R. Civ. P. 72(b)(2). 	The fourteen day period may be extended
upon motion. 	Failure to file objections within the specified
time waives the right to appeal the district court’s order. 	See
Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir.
2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
January 16, 2018
cc: 	Robert V. Towle, pro se
Elizabeth C. Woodcock, Esq.
Lynmarie C. Cusack, Esq.
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